The employment relationship is a special one with reciprocal duties and obligations – not only in terms of statute, but also in terms of the common law. Employees owe their employer an implied duty of good faith and honesty and may not act in any manner calculated or likely to destroy or seriously damage the relationship of trust or confidence between the parties.
Even though an employer may have a comprehensive disciplinary code, it cannot be seen as exclusive, prescriptive or used like a criminal code. Howsoever some species of misconduct may be described, such labels should not create a limited number of criminal-style offences to be used as prescribed disciplinary charges. The standard of conduct which is really at issue, is that of diligence and good faith, and any conduct that goes against this, could potentially lead to a dismissal for misconduct.
The courts have repeatedly ignored technical arguments such as legal proof of intention, in favour of determining if the employee had deviated from the standard of acting in good faith, thereby damaging the trust relationship. They have made it abundantly clear that strict proof of the elements of a formulated offence and applying the corresponding penalty from a disciplinary code, is not what disciplinary action and misconduct dismissals in the workplace are about.
There is a definite operational backdrop and inherent common law obligations, which go far beyond a list of offences in such a code. Seniority of employees and the degree of freedom they have to make and execute business decisions; or the extent to which the employer relies on the employee’s expertise and judgement in conducting its business, play a role. Negligence is regarded as a breach of the duty of care an employee owes their employer - the basis for their culpability being not the act or omission itself, but rather the lack of care and/or diligence that accompanied the act or omission. If the consequences of that single act or omission is sufficiently serious, or where the employee holds a position where even a single act of negligence can have devastating consequences, dismissal may be justified for a first offence.
Similarly, the appropriate sanction should be determined for each individual breach, with this context in mind. Consideration must be given to the infraction / offence, the circumstances of the employee as well as the interests of the employer and the other employees. The seriousness of misconduct in the employment context depends therefore not only on the actions of the employee itself, but on the way in which it impacts on the employer’s business and its other employees. This not only pertains to risk, but also to the message an employer sends to its employees regarding misconduct of this nature.
Employees in general fail to understand the trust relationship and the duties they owe their employer. They get stuck on technicalities around disciplinary issues and refuse to acknowledge any wrongdoing until the bitter end – which could reveal lack of judgement, unreliability and as a result, no chance of a salvageable trust relationship. The risk of continued employment becomes glaringly apparent and dismissal an unavoidable result.
[A more comprehensive article with case law examples is available here.]
© Judith Griessel
Comments